Adoption Policy Conference: Adoption-Pitfalls and Procedures
Prepared by Karen S. Law, February 18, 2011
42909 Riverstone Ct., Ashburn, Virginia 20148
Telephone: 703.723.4385
© Karen S. Law, 2011
Introduction: Hague Adoption Convention Applies to Domestic Adoptions
In the current age, when many foreign nationals live in the United States, it is not
uncommon for a client to request assistance in adopting a relative who is a citizen of another
country. At times, the child may already be present in the United States. In the past in that
situation, the attorney might have handled the domestic adoption and referred the client to an
immigration attorney for further assistance. However, since April 1, 2008, the attorney who
takes that course of action may incur significant malpractice liability due to lack of compliance
with an international adoption treaty.
The coming into force of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Adoption Convention) on April 1, 2008,
has introduced a new adoption procedure for children emigrating from a country where the
Hague Adoption Convention is also in force.1 At the outset, an analysis must be made as to
whether the case at hand falls under the scope of the Hague Adoption Convention. This analysis
is necessary even when the child to be adopted is present in the U.S. and is being adopted
by prospective adoptive parents also present in the U.S.2 It is no longer possible to obtain a
domestic adoption for a child whose country of citizenship is a Convention country, and then,
seek to comply with Immigration regulations for the adoption thereafter. In such a case, the
subsequent Immigration filings would be denied for lack of compliance with the Hague
Adoption Convention and the attorney who handled the domestic adoption would face
malpractice liability.3
Eighty other countries have implemented the provisions of the Hague Adoption
Convention. The new route created with the implementation of the Hague Convention Adoption
does not replace the procedures already in place before April 1, 2008, for children who are
1 For a list of countries which are also party to the Convention, See http://adoption.state.gov/hague/overview/countries.html
2 8 CFR § 204.2 (d) (2) (vii) (D) and (F).
3 Id.
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citizens of countries where the Hague Adoption Convention has not come into force (such as
main sending countries like Russia, South Korea, Ethiopia or Kazakhstan), or when the adoption
was finalized prior to April 1, 2008, or the case is otherwise “grandfathered”.4 As a result, there
now are two distinct procedures for intercountry adoption. The family does not have the choice
of which procedure to use, but instead, must use the Hague Adoption Convention procedure if
the child is from a Hague Adoption Convention partner country and must use the old procedure
if the child is from a non-Hague Adoption Convention partner country.
How to Determine whether your Domestic Adoption is Governed by the Hague
Adoption Convention
Obviously, the necessary first step for every domestic and intercountry adoption now is to
determine whether the adoption is governed by the Hague Adoption Convention. The
Department of State website5 and the Hague Conference website6 list the countries where the
Convention has entered into force.7 Practitioners should refer to the list early and often as a new
country might have been added to the list at any time.
If the prospective adoptive parents are considered “habitual residents” of the United
States, and the child is considered a “habitual resident” of a different Convention country, and
the child will be moving, or has moved, from one Convention country to another for purposes of
adoption, the Hague Adoption Convention governs the case.8 The three critical inquiries, then, in
determining whether an adoption is governed by the Hague Adoption Convention are the
“habitual residency” of the prospective adoptive parents and the child to be adopted and the
movement of the child from one country to another in connection with the adoption.9
In terms of the first two factors, the Hague Adoption Convention itself does not offer a
definition of “habitual residency”. The Code of Federal Regulations however, sheds some
guidance as to the definitions of “habitual residence” for both the prospective adoptive parents
and the child.
Habitual Residence of Prospective Adoptive Parents
8 CFR §204.303(a) provides that a U. S. citizen with a domicile in the United States
(even if temporarily living abroad) is considered a “habitual resident” of the United States.10
4 For a detailed discussion of which cases qualify as being “grandfathered”, see “Intercountry Adoptions:
Understanding the Procedures One Year After Implementation of the Hague Adoption Convention”, Hemphill,
Stoutamyer Law, and Rosalia, Immigration & Nationality Law Handbook, 2009-10 Edition, AILA Publications.
5 http://adoption.state.gov/hague/overview/countries.html
6 http://hcch.net
7 It is not enough that a country has merely signed or ratified the Hague Adoption Convention. The Hague
Convention must have entered into force for the case to be considered a Hague case.
8 8 CFR §204.301, Definitions, “Convention Adoption.”
9 The third inquiry, as to the movement of the child from one country to another, would not apply if the child to be
adopted and the adopted parents were both considered “habitual residents” of the same country because there would
be no movement from one country to another for purposes of adoption by definition. This could also occur in a
step-parent adoption scenario when the child is already present in the U.S. due to his mother’s marriage and thus,
there is no movement between countries due to an adoption.
10 8 CFR §204.303(a).
2
Thus, a married couple or single people living in the United States, who are U.S. citizens, are
considered “habitual residents” of the United States.11
Habitual Residence of Child to be Adopted
8 CFR §204.303(b) provides that the child is a habitual resident of his country of
citizenship.12 However, if a child is living in another country and the Central Authority
determines that the child’s status in that country is sufficiently stable for it to exercise
jurisdiction, the child may be considered “habitually resident” in that country. The same
regulation cautions against children being sent to another country as a prelude to adoption,
perhaps to avoid complying with Convention requirements.13
On September 29, 2008, USCIS offered some further guidance for cases where the child
is a citizen of a foreign Convention country but is residing in the United States. USCIS, in a
Frequently Asked Questions document,14 explained that the regulations could be interpreted to
permit a finding that a child is no longer a habitual resident of the country of citizenship and is
instead a habitual resident of the United States. The case may proceed outside of the
requirements of the Hague Adoption Convention provided that the Central Authority of the
child’s country of citizenship 1) is aware of the child's presence in the United States, 2) is aware
of the adoption, and 3) finds that the child is no longer a habitual resident of the country of
citizenship.15
The factors enumerated by USCIS that would mean that a child’s status in another
country is sufficiently stable for it to exercise jurisdiction are:
 duration of presence in the other country
 how the child entered the other country
 school attendance in the other country
 number of relatives in the other country
 remaining relatives in the other country
 activities in the other country (participation in school sports or academic programs, etc.)
 whether the prospective adoptive parents have obtained guardianship of the child in that
country
11 Our Central Authority, the Dept. of State, has taken the view that if the family has lawful permanent resident
status (green card) in lieu of U.S. citizenship, they are still considered “habitual residents” of the U.S. However, if
the foreign nationals are living in Virginia under a temporary visa, they would NOT be considered “habitual
residents” of the U.S., but of their country of citizenship. See “A Web-guide for State Authorities on Outgoing
Adoption Cases from the United States to Another Convention Country”, updated as of April 2008. Available at
http://adoption.state.gov/pdf/web_guide_state_authorities.pdf
12 8 CFR §204.303(b).
13 Id.
14 Frequently Asked Questions of September 29, 2008, available as AILA InfoNet Doc. No. 08093064.
15 “USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) no longer precludes approval of a Form I-130 if the
adoption order that is submitted with the Form I-130 expressly states that the Central Authority is aware of the
child’s presence in the United States, and of the proposed adoption, and that the Central Authority is aware of the
child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined
that the child is not habitually resident in that country. A copy of the written statement from the Central Authority
must also be submitted with the Form I-130 and the adoption order.” USCIS Frequently Asked Questions of
September 29, 2008, AILA InfoNet document no. 08093064.
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transfer of personal possessions16
If these factors are present, the prospective adoptive family could contact the Central
Authority of the child’s country of citizenship to request a written determination that the child
was no longer a “habitual resident” of that country. As long as the written determination was
filed with the U.S. state court and was incorporated in the state adoption decree, the family could
proceed with the U.S. state court adoption without fear of violating the requirements of the
Hague Adoption Convention.17
Alternatives to Obtaining the Domestic Adoption if the Case is Governed by the
Hague Adoption Convention
This author’s practice has a special concentration in adoption immigration cases. In her
experience, it is very difficult to obtain the written determination from the Central Authority that
the child is no longer a “habitual resident” of that country. The difficulty arises because the U.S.
is the only country currently requesting such a written determination. Other Central Authorities
are unfamiliar with the request and do not make it a high priority to comply. There are some
countries whose Central Authorities have reportedly indicated to the U.S. Department of State
that they will never issue such a letter. Other countries, such as Mexico, are very problematic.
As a result, it may be the best course for the attorney to advise the client of the Hague
Adoption Convention implications of pursuing a domestic adoption and suggest alternatives.
There are three possible alternatives.
First, the child could return to their previous country and the family could begin the
Hague Adoption Convention adoption process. The two potential problems with this route are
the prohibited prior contact between the child and adoptive parents 18 and the possibility that
they have already obtained a custody decree which would have to be vacated, voided or
annulled.19 In addition, the child’s birth family may not be able to provide proper care for the
child and a return to the same situation may not be in the child’s best interests.
10 Frequently Asked Questions of September 29, 2008, available as AILA InfoNet Doc. No. 08093064.
The 6th Circuit Court of Appeals relied on such factors to consider that a child had sufficiently acclimatized to the
United States in a case involving habitual residency of the child under the Hague Convention XXVIII. Karkkained v.
Kovalchuck, 445 F.3d 280 (3d Cir. 2006).
17 C. Hemphill, K. Stoutamyer Law, and C. Rosalia, “Intercountry Adoptions: Understanding the Procedures One
Year after Implementation of the Hague Adoption Convention,” Immigration and Nationality Law Handbook, 885
(AILA 2009-10 Ed.).
18 8 C.F.R. §204.309 (b)(2) states that an I-800 must be denied if “the petitioner, or any additional adult
member
of the household had met with, or had any other form of contact with, the child’s parents, legal custodian, or other
individual or entity who was responsible for the child’s care when the contact occurred.” An exception may arise in
such a situation if the Central Authority makes a finding that the contact was not prohibited, however, this will be a
case specific determination. Another exception is provided in the case of relative adoptions, where, the prospective
adoptive parents would usually have had prior contact with the child. The definition of a “relative adoption” is
detailed in the regulations.
19 In a Convention case, the I-800 must be provisionally approved before the adoption or guardianship decree is
obtained or the I-800 will be denied. If the family has obtained the decree too early, the regulations allow for the
court decree to be voided or vacated and the family may begin the process over.
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Second, the family could obtain permission from the Central Authority of the child’s last
country of habitual residence to process the case pursuant to the Hague with the child physically
present in the U.S.20 One difficulty in such a situation would be generating the required Article
16 Report on the child because the report is completed by the Central Authority or its designee in
the foreign country and the child is not present there for an assessment of his or her
psychological, social and medical history. Further, the Article 16 Report requires counseling and
the written consent of the child in some instances. Finally, the family is required to obtain the
adoption decree or guardianship order in the foreign court. Without the child being present, this
may also present challenges. However, USCIS regulations do permit an immigration benefit to
accrue in this scenario as long as the child did not enter without inspection or is not otherwise
ineligible to adjust status.21Assuming that these hurdles could be overcome, the benefit would be
immediate legal status for the child at the conclusion of the process.
Finally, family could seek lawful permanent residence status for the child through Special
Immigrant Juvenile, VAWA, or asylum in lieu of a domestic adoption. These pathways do not
require compliance with the Hague Adoption Convention procedures at the present time.
Hypothetical Questions
1. John, a U.S. citizen married Victoria, a citizen of Canada in 2006. Victoria and her eight
year old son came to the U.S. in 2006 on K-1 visas and have lived with John ever since.
They now have lawful permanent resident status. John would like to adopt Victoria’s
son, his step-son. Are there Hague implications? Must John pursue a Hague adoption?
2. Huang Lee, a U.S. citizen, calls your office. She wants to adopt domestically her nine
year old nephew, who was born in Korea and lived there until December 2008. His
parents are living and signed consents to the adoption. Her nephew entered the U.S.
under as a visitor and over-stayed. Does the domestic adoption fall under the Hague
Adoption Convention? Can an immigration benefit be obtained based on the adoption?
3. Meila and her husband would like to adopt her thirteen year old nephew. The nephew
and his mother came to the U.S. from India in 2002 on visitor’s visas and overstayed.
The nephew has been attending school in the United States, plays soccer, and is
otherwise, thoroughly “Americanized”. His mother would like to permanently return to
India. Would it be possible for Meila and her husband to adopt the nephew even though
he was born in India and came to the U.S. from India, a Hague Convention partner
country? How would you proceed? Does it matter that there has already been contact
between the prospective adoptive parents and the birth parent and minor child?
20 8 CFR 204.309(b) (4).
21 Id.
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Hypothetical Answers
1. The child is not coming to the U.S. for purposes of adoption. He is already here and
has lawful permanent resident status. Once he became a lawful permanent resident,
he is considered a habitual resident of the U.S., not Canada. Therefore, this is a
domestic adoption without Hague implications. He will automatically become a U.S.
citizen when his mother naturalizes.
2. Because Korea is not a Hague Adoption Convention partner country, Huang Lee
could proceed with the domestic adoption. She could file for lawful permanent
residence for her nephew AFTER she has met the two years of legal custody and
physical residence requirements.
3. There are four possibilities in this common scenario. First, the child could return to
the India with his mother and the family could begin the Convention adoption
process. However, given that he has lived here for eight years, this might not be in
the child’s best interests. Second, the family could obtain permission from the
Central Authority of India to process the case pursuant to the Hague with the child
physically present in the U.S. However, we do not currently have any guidance as to
how to accomplish the process when the child is present in the U.S. The third
possibility would be to obtain a written determination from the Central Authority of
India that the child’s ties to that country were no longer sufficiently strong for it to
exercise jurisdiction. The fourth possibility would be to seek lawful permanent
residence status for the child through Special Immigrant Juvenile after the mother
returns to India. This pathway does not require compliance with the Hague
Convention procedures at the present time. If the adoption is processed pursuant to
the Hague Adoption Convention, the nephew-aunt relationship fits within the relative
exception to prohibited contact.
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